Tribes & Renewables VII: Fostering Better Relationships Under the National Historic Preservation Act

By Andrea Lang Clifford, Policy Analyst

The last few posts on this blog series on Tribes & Renewables have explained the role of the National Historic Preservation Act (NHPA) in ensuring that federal agencies take into account the effects of federally approved renewable energy projects on tribal cultural resources. In particular, the last post in this series used the proposed Cape Wind Project on the Nantucket Sound in Massachusetts as an example of poor NHPA implementation, suggesting that federal agencies should include tribes in the decision process as early as possible so that their concerns can be better taken into account. While the NHPA does not require that federal agencies take action to protect cultural resources, it does require them to consult with tribes about the effects of their decisions on tribal cultural resources. This final post in the Tribes & Renewables series examines what federal agencies have done and can do in the future to improve tribal consultation and reach more informed decisions.

My blog post on the Cape Wind project highlighted the perils of poor consultation with tribes concerning renewable energy projects; making tribes feel as though they are a mere afterthought in such decisions may make tribes distrustful both of federal agencies and of renewable energy projects moving forward. Besides the straightforward recommendation that agencies should do a better job implementing the NHPA on a project-by-project basis, both tribes and federal agencies should also increase efforts to strengthen their relationships and build understanding outside the context of individual projects. 

For example, five years ago in 2011, the Advisory Council on Historic Preservation and the National Association of Tribal Historic Preservation Officers coordinated the “Tribal Summit on Renewable Energy:Protecting Tribal Cultural Resources.” Both federal agency and tribal representatives attended the event, where both sides spoke about their priorities, concerns, and thoughts on how future renewable energy projects should move forward. Such a collaborative effort, occurring outside the context of a specific project—where the stakes are often raised, particularly for tribes trying to protect a specific important cultural or sacred resource—is exactly the kind of event that may help tribal and agency representatives understand each other’s concerns and consult more meaningfully on future projects.

Participants at Forest Service Region 8’s 13^th annual

 “To Bridge a Gap” conference. Credit: U.S. Forest Service

Although no similar renewable energy development-focused summits have taken place, at least one of the Forest Service’s nine regions has taken steps to improve working relationships with tribes more broadly, and does so on an annual basis. Region 8 of the Forest Service, which manages all national forests in the Southeastern U.S., has for 15 years hosted its annual “To Bridge a Gap” conference  to help build positive working relationships with tribes. This kind of working relationship can help an agency, when faced with a decision, to understand which tribes might be interested and how their concerns might be addressed.

In trying to balance renewable energy development with protecting tribal cultural resources on federal land, consultation under the NHPA plays a key role. The purpose of the NHPA is to result in better decision making through procedural means; that is, consulting with tribes to understand concerns about protection of culturally significant resources allows agencies to come to more informed decisions about how, where, and whether to site renewable energy projects on federal land. However, that process only works where both sides have a positive working relationship. These two examples of summits and conferences are an excellent model for building those relationships. Hopefully, more federal agencies, tribes, or other interest groups will organize similar events in the future. 

Conclusion:

This blog series has covered a range of issues relating to tribes and renewable energy. As a starting point, it’s important to recognize that American Indian tribes face disproportionate and unique problems as the Earth’s climate warms (Part I). Fortunately,  developing renewable energy on tribal land not only helps combat climate change, but may also provide significant economic benefits for tribes (Part II) that can overcome some of the barriers to development on their land (Parts III & IV) . In terms of renewable energy development on federal land, tribes are often concerned that such projects may pose a risk to tribal cultural resources (Part V). Hopefully, as this post and Part VI covered, earnest consultation on individual projects and better working relationships between federal agencies and tribes can help renewable development occur in a way that does not compromise important tribal cultural resources.

Tribes & Renewables Part IV: Barriers to Tribal Renewable Development and Ownership

By Andrea Lang, Policy Analyst

Credit: Energy.gov

In Part III of this blog series on tribes and renewable energy resources, I explored the convoluted process for obtaining the Bureau of Indian Affairs’ approval before American Indian tribes can develop renewable energy on tribal land. Even if that process were remedied, tribes still face numerous other barriers to enjoying the full benefits that renewable development on tribal land would afford. According to a Sandia National Laboratory survey of tribal and federal Indian energy experts, lack of financing or funding and lack of customers are two of the most significant barriers to renewable energy development on tribal land. This fourth post in the Tribes and Renewables series briefly explains each of these barriers and suggestions for overcoming them.

Lack of Financing or Funding

One of the major barriers to tribal renewable energy development is lack of access to funding or financing. Even without the financing difficulties raised by the need for Bureau of Indian Affairs approval, tribes face considerable and inequitable barriers to financing their projects. Many renewable energy project owners are able to offset some of their tax liability by qualifying for the federal production tax credit or the investment tax credit, making the energy more valuable to them. However, since tribal governments have no tax liability, the credits do not provide any benefit to tribes directly. Tribes can attempt to find a third-party tax investor willing to finance their project in exchange for the tax credits, but it requires giving that investor ownership of the project for a time. This adds an extra step to the process and robs the tribe of the ability to fully own renewable energy projects, which is inequitable and raises concerns among some tribes with regard to sovereignty. Regardless, the federal government is currently phasing out the renewable tax credits over the next five years.

However, even if tribes could use the benefit of tax credits to save money and make renewable projects more financially beneficial, it would not solve the problem of being able to finance tribal renewable projects. Fortunately, the federal government is trying to overcome this particular barrier. Last March, the U.S. Department of Energy (DOE) announced a $9 million dollar investment in Native American “clean energy and energy efficiency programs,” including 12 solar photovoltaic projects, one wind energy project, and one tidal energy project. While this program will likely lead to additional renewable energy development on some tribal lands, such direct funding from the federal government should only be part of the solution.

Lack of Customers

The Sandia National Laboratories survey also found that a perceived lack of customers hinders tribal development of renewable energy resources. Prospective Native American renewable project developers could build projects to provide power to tribal residents, helping the tribe become more self-sufficient and reducing its need to purchase power from elsewhere. But the fact that the survey identified lack of customers as a significant barrier to development suggests that tribes are looking to also sell their electricity elsewhere.

The best way to ensure adequate demand for the output of renewable projects is to ensure that state renewable portfolio standards (RPSs) are sufficiently strong to create a market for renewable energy. RPSs are state mandates to obtain a certain amount of electricity from renewable resources. In states with high RPSs, utilities will be looking to buy more renewable electricity to meet their requirement, creating more customers for tribes. This is one of many reasons states should consider enacting ambitious RPSs. 

As I’ve explained in the last few posts in this series, there are certainly some barriers to tribal development of renewable resources, but there are also lots of reasons for hope. Plenty of policy options are available to overcome these barriers, and the fact that the Government Accountability Office and the Sandia National Laboratories are looking into the reasons for underdevelopment of tribal renewable resources is promising. The next post in this series will begin looking at a completely different aspect of tribes and renewables: how to develop renewable energy projects on non-indian land without destroying tribal cultural resources.